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Thursday, August 18, 2016

Is it time to reevaluate absolute immunity for prosecutors?

Bidish Sarma writing for the American Constitution
Society examined Absolute Immunity for Prosecutors.

Four decades ago, the U.S. Supreme Court implemented
a major, nationwide policy that consolidated prosecutorial authority: it
granted prosecutors absolute immunity for acts committed in their prosecutorial
role. This decision sheathed prosecutors in protective armor while they pursued
criminal convictions through an era of crime-related hysteria, and it eroded
one of the few mechanisms available to hold prosecutors accountable.
Considering the growing call to acknowledge and address an epidemic of
prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether
it holds up to modern-day scrutiny.

Sarma concluded that absolute immunity for
prosecutors did not make much sense in 1976, and it makes no sense today.
Revisiting the doctrine does not entail a constitutional change; instead, the
Court simply needs to update its view on absolute immunity’s applicability (or
correct its interpretation of the federal statute). Increasingly, we have
recognized that prosecutorial discretion in charging and plea bargaining
invisibly resides at the center our criminal justice system. If we are serious
about reducing mass incarceration or, more modestly, improving the system’s
fairness, we need accountability for the actors who have been authorized to
charge, try, and convict. To this point, there has been little more than moral
hazard and prosecutorial impunity.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.